[ Pobierz całość w formacie PDF ]
.]his Toyota 4Runner from inspection by oth-ers.Furthermore, in placing the electronicdevices on the undercarriage of the Toyota [Lee was a cofounder and president of4Runner, the officers did not pry into a hid- the International Boxing Foundation (IBF),den or enclosed area.an organization that crowns internationalAt oral argument, McIver argued that boxing champions and publishes monthlythe placing of the electronic devices on the ratings of boxers within different weightundercarriage of the Toyota 4Runner was a divisions, used is to determine which box-seizure of the vehicle.This argument ignores ers will fight in upcoming IBF championshipthe principle articulated by the Supreme bouts.In May 1996, the Federal Bureau ofCourt in United States v.Karo.There, the Investigation received information that box-Court wrote: ing promoters were paying certain IBF offi-cials in order to receive more favorable IBFA  seizure of property occurs when ratings for their boxers.F.B.I.investigators there is some meaningful interference questioned Don  Bill Beavers, chairman ofwith an individual s possessory interests the IBF Executive Committee who agreed toin that property. Although the can may co-operate.have contained an unknown and unwanted With Beavers cooperation, the FBI madeforeign object, it cannot be said that any- audio and video recordings of three meetingsone s possessory interest was interfered between Beavers and Lee that took place in awith in a meaningful way.At most, there hotel suite rented for Lee.The meetings werewas a technical trespass on the space electronically monitored and recorded usingoccupied by the beeper.The existence of a equipment installed in the living room ofphysical trespass is only marginally rele- Lee s suite by the FBI before Lee s arrival.vant to the question of whether the Fourth The equipment consisted of a concealed cam-Amendment has been violated, however, era and microphone that transmitted video640 CONSTITUTIONAL LAWand audio signals to a monitor and recorder Although Hoffa involved testimony aboutlocated in an adjacent room.The FBI did not conversations and not electronic record-obtain a warrant authorizing the installation ings of conversations, the Supreme Court inor use of the equipment, but instead relied later cases drew no distinction between theon Beavers consent.The government agents two situations.As the Court in Caceres putlocated in the room next to Lee s suite were it,  Concededly a police agent who concealsinstructed to monitor activity in the cor- his police connections may write down forridor to determine whether or not Beavers official use his conversations with a defen-had entered Lee s rooms.The agents were dant and testify concerning them, without afurther instructed to switch the monitor and warrant authorizing his encounters with therecorder on only when Beavers was in the defendant and without otherwise violatingsuite and that, at all other times, keep the the latter s Fourth Amendment rights.Formonitor and recorder switched off.During constitutional purposes, no different result isone of the meetings, Lee was captured on required if the agent instead of immediatelytape accepting cash from Beavers that had reporting and transcribing his conversationsoriginated as a bribe paid by a Colombian with defendant, either (1) simultaneouslyboxing promoter.records them with electronic equipmentLee was indicted and convicted on 6 counts which he is carrying on his person; (2) orof taking bribes from boxing promoters.He carries radio equipment which simultane-appealed.] ously transmits the conversations either torecording equipment located elsewhere orto other agents monitoring the transmittingALITO, Circuit Judgefrequency. The Court added that it had repudiated any suggestion that [a] defendant* * *had a  constitutional right to rely on possibleflaws in the agent s memory, or to challengeLee challenges the District Court s admis- the agent s credibility without being besetsion into evidence of tapes of meetings in his by corroborating evidence that is not suscep-hotel suite.Lee contends that the monitor- tible of impeachment.  In short, the Courting and recording of these meetings violated adopted the principle that, if a person consentshis Fourth Amendment rights because the to the presence at a meeting of another persongovernment did not obtain a warrant.Lee s who is willing to reveal what occurred, theargument, however, is inconsistent with well- Fourth Amendment permits the governmentestablished Fourth Amendment precedent to obtain and use the best available proof ofconcerning the electronic monitoring of con- what the latter person could have testifiedversations with the consent of a participant.about.This principle appears to doom Lee sIn Hoffa v.United States, a confidential argument here.government informant named Partin met Lee argues, however, that neither thewith the defendant in the defendant s hotel Supreme Court nor our court has extendedsuite and elsewhere and testified about those this principle to the circumstances present inconversations at trial.The defendant argued this case.He points to three factors: (1) thethat Partin had conducted an illegal search agents used video rather than audio equip-for verbal evidence and that, because the ment; (2) the recording occurred in Lee sdefendant was unaware of Partin s role as an hotel room, a place where a person has ainformant, the defendant had not validly con- heightened expectation of privacy; and (3)sented to his entry into the suite.The Supreme the monitoring equipment remained in theCourt rejected this argument, holding that the room when Beavers was not present.defendant had  no interest legitimately pro- In making this argument, Lee relies ontected by the Fourth Amendment. The Court the First Circuit s decision in United Statesconcluded that the Fourth Amendment does v.Padilla, which held that the defendant snot protect  a wrongdoer s misplaced belief Fourth Amendment rights were violatedthat a person to whom he voluntarily confides when agents placed an audio recordinghis wrongdoing will not reveal it. device in the defendant s hotel room andPART II: CASES RELATING TO CHAPTER 5 641UNITED STATES V.LEErecorded conversations between the defen- conversation merely because the monitor-dant and another person who consented to ing technique employed poses a hypotheti-the recordings.In reaching this conclusion, cal risk that protected conversations may bethe First Circuit expressed concern that if intercepted.law enforcement officers were permitted to We have considered the concern expressedleave a monitoring or recording device in a by the Padilla Court, but we remain con-hotel for a lengthy period of time the officers vinced that the present case is governed bywould be tempted to monitor or record con- the well-established principle that a personversations that occurred when no consenting has no legitimate expectation of privacy inparticipant was present.As the Court put conversations with a person who consentsit, [t]he government s position would turn to the recording of the conversations.Noneon its head the carefully tailored [consent- of the three factors on which Lee reliesing party] exception to.one s expecta- appears to us to be sufficient to take this casetion of privacy.Electronic devices could be beyond the reach of this principle [ Pobierz całość w formacie PDF ]